Alexander Rose v. Registrar of Motor Vehicles, 2021 CanLII 85120

Date: 2021-09-09

Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an impoundment of a motor vehicle under section 55.1 of the Act

Between:

Alexander Rose

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Colin Osterberg, Member

Appearances:

For the Appellant: Alexander Rose, Self-represented

For the Respondent: Stephen Grootenboer, Agent

Heard by Teleconference: September 2, 2021

REASONS FOR DECISION AND ORDER

OVERVIEW

1The appellant, Alexander Rose (the “appellant”), appeals the impoundment of his motor vehicle under section 50.2 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). The appellant’s motor vehicle was impounded on August 4, 2021. At the time of the impoundment, the driver was driving with a suspended licence. A Notice of Impoundment was issued for a period of 45 days.

2The appellant appeals on the grounds that the vehicle was stolen at the time it was impounded, that he exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension, and that the impoundment will cause exceptional hardship.

3For the reasons set out below, the appeal is dismissed, and the impoundment of the vehicle is confirmed.

ISSUES TO BE DETERMINED

4The first issue to be determined in this appeal is whether the vehicle was stolen at the time it was detained in order to be impounded in accordance with section 50.2(3)(a) of the Act.

5The second issue to be determined is whether the appellant exercised due diligence in accordance with section 50.2(3)(c) of the Act.

6The third issue to be determined is whether the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.

EVIDENCE AND ANALYSIS

7The respondent presented evidence which establishes that:

(1) the appellant is the registered owner of the impounded vehicle, a 2006 Ford;

(2) on August 4, 2021, the police discovered the impounded vehicle being driven by Jordan Dietrich (“Dietrich”);

(3) Dietrich’s licence expired September 9, 2008. Despite that, Dietrich continued to drive and he incurred several more driving infractions and suspensions, most notably a suspension for dangerous driving in 2015 and one for failing to complete a remedial program in 2016. His licence was still expired and under suspension for criminal code related offences when the vehicle was impounded on August 4, 2021.

The vehicle was not stolen

8The appellant alleges that the vehicle was “stolen” at the time that it was detained in order to be impounded. He says that he had loaned the vehicle to Dietrich for two weeks and that he was supposed to return it on August 1, 2021, three days before it was impounded.

9The appellant’s evidence was that he met Dietrich about three months before the impoundment while the appellant was working as a taxi driver. Dietrich advised the appellant that he needed a vehicle to use for work, and the appellant agreed to lend him his truck for two weeks. Dietrich was going to use that time to save money in order to purchase the vehicle.

10The appellant could not recall the date on which Dietrich began using the truck, but stated at the hearing that it was to have been returned on August 1, 2021. There was nothing in writing evidencing this agreement.

11Dietrich did not return the truck on August 1, 2021, and the appellant sent him a text which said, “what’s up, give me a call”. According to the appellant, his text said nothing about the return of the truck or that Dietrich was overdue in returning it. Dietrich did not reply to the August 1, 2021 text and the appellant sent him another text on August 3, 2021, which said, “what’s up, give me a call please”.

12On August 4, 2021, Dietrich phoned the appellant and told him that the truck had been impounded.

13The appellant never reported the vehicle to the police as stolen and has never told Dietrich that he considered the vehicle to have been stolen. He was invited to share the text messages that he alleges he sent with the Registrar but says that he changed phones three weeks before the hearing and did not have them.

14The appellant presented no other evidence to support his allegation that the vehicle was stolen at the time of the impoundment.

15The test for determining whether a vehicle has been stolen is set out by the Divisional Court in Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745 (“Marshall”) which states as follows:

In our opinion, a vehicle is “stolen” in this context when it is taken without the owner’s consent, and when the perpetrator intends to deprive the owner of it, whether permanently or temporarily.

16The appellant argues that, by retaining the vehicle longer than he was authorized by the appellant, Dietrich stole the vehicle for the purposes of s. 50.2(3)(a).

17I find that the appellant has failed to prove that the vehicle was stolen. He initially lent the vehicle to Dietrich and allowed him to have possession of it and to use it for two weeks. Although in some circumstances continuing to use the vehicle after the period of time agreed to might be considered theft by conversion, it is up to the appellant to prove that these are such circumstances. I find that he has not.

18I base this conclusion on the following facts.

19The appellant could not recall the date on which he lent Dietrich the vehicle, but his evidence was that the loan was for two weeks. At the hearing the appellant said that the vehicle was to be returned August 1, 2021, but in the Notice of Appeal completed by the appellant, he alleged that the truck was to be returned August 2, 2021. There is nothing in writing as to when the truck was to be returned.

20The appellant said that, when the truck was not returned on August 1, 2021, he texted Dietrich asking what was going on but could not produce the text itself. In any event, the appellant does not say in the text that Dietrich was supposed to have returned the vehicle or that he should do so immediately. The text only asks Dietrich to give him a call. If the appellant expected the vehicle to be returned at that time, the text would likely have said so.

21The appellant said that, when the truck was still not returned on August 3, 2021, he texted Dietrich again asking what was going on but again could not produce the text. Again, the appellant does not say in the text that Dietrich was supposed to have returned the vehicle or that he should do so immediately. The text only asks Dietrich to give him a call. If the appellant expected the vehicle to have been returned by then, the text would likely have said so.

22The appellant admits that he never reported that the vehicle was stolen to the police at the time it was impounded and he could not produce any written communication with Dietrich that suggested that he was not supposed to have had possession of the vehicle at the time it was impounded.

23The evidence is not consistent with there being an agreement providing for a specific date for the return of the vehicle or with the appellant’s allegation that Dietrich had converted the vehicle to his own use, thereby committing theft. The evidence is more consistent with there being an unspecified date for the return of the vehicle and the appellant never considering the vehicle to have been stolen.

24I find that the vehicle was not stolen at the time it was detained in order to be impounded.

Due diligence

25The appellant says that he did not know that Dietrich’s licence was suspended when he allowed him to take possession of the impounded vehicle. The appellant testified that, before lending the vehicle, Dietrich showed him a driver’s licence. He says that the licence looked like his own licence, but had Dietrich’s name and photograph.

26The appellant did not give evidence that he looked at the expiry date on Dietrich’s licence, or that he did any more than a cursory inspection of Dietrich’s licence before lending him the vehicle. As noted, Dietrich’s licence had expired September 9, 2008. The appellant did not take a photocopy of the licence and the police report indicates that Dietrich did not produce any licence when he was stopped, and the vehicle impounded.

27This ground of appeal requires the appellant to show that he took reasonable steps to determine that the suspended driver’s licence was not suspended. In this context, due diligence required more than making assumptions of the facts and conducting a brief inspection of the licence. It required steps to be taken to confirm the driver’s assertion that his licence was not suspended and that it was valid. Under this ground of appeal, due diligence typically, at a minimum, requires the owner to have asked to see a licence that is valid on its face, before permitting the driver to drive the car. When an owner is allowing someone, he does not know to borrow his vehicle for an extended period of time with a view to selling him that vehicle, the owner is required to do more, including examining the licence thoroughly, taking a photocopy of the licence and checking with the Ministry of Transportation as to the status of that licence.

28The appellant had no reasonable basis to believe that Dietrich had a valid licence when he allowed him to drive the impounded vehicle, and the steps he took to determine whether Dietrich had a valid licence were inadequate to satisfy the test for due diligence in the circumstances.

29I find that the appellant has failed to prove on a balance of probabilities that he exercised due diligence in attempting to determine that Dietrich’s driver’s licence was not under suspension when the vehicle was detained in order to be impounded.

Exceptional Hardship

30Section 10 of O. Reg. 631/98 under the Act (the “Regulation”) sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment.

31Subsection 10(1) requires the Tribunal to first consider whether an alternative to the impounded vehicle is available. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:

[T]he owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impound period.

32If the owner fails to prove that no alternative to the impounded vehicle is available, then the appeal under s. 50.2(3)(d) of the Act will fail. Only where the owner has established that there is no alternative available is the Tribunal able to consider whether the impoundment will result in exceptional hardship.

33The appellant testified, and the evidence shows, that he has two other vehicles that he has been using since the impoundment and the appellant agrees that he has not suffered exceptional hardship while the vehicle has been impounded. The appellant’s only allegation with respect to hardship is that he cannot afford the impoundment fee. Impoundment costs are not a factor the Tribunal may consider in determining the issue of exceptional hardship in this case. Under s. 10(3) of the Regulation, financial or economic loss to a person can only be considered if certain conditions are met, the first of which is that there be no alternative to the impounded vehicle.

34I find that the appellant has not proven that there are no alternatives to the impounded vehicle available and his appeal under s. 50.2(3)(d) of the Act must fail as a result. I therefore need not make determinations with respect to the remaining components of the exceptional hardship test. Although the impoundment has resulted in inconvenience, the appellant has failed to prove exceptional hardship under the Act and his appeal must fail on this ground.

ORDER

35For the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.